State Legislative Brief

The Kerala Public Health Bill, 2021

Key Features The Bill creates a three-tier public health system at the state, district and local level, and designates existing health officials as public health authorities.    The Bill provides measures for the control of communicable and non-communicable diseases, along with management of water supply, waste management, and vector control.   The State Public Health Authority will specify conditions for declaring a public health emergency.	Key Issues and Analysis The Bill does not provide adequate safeguards for health data collection and processing.   All medical practitioners may not have the expertise to examine people for communicable diseases and provide certificates accordingly.   The Bill does not define malicious abuse of power by the Local Public Health Authority, or specify the method of investigation for such cases.
The Bill was introduced in the Kerala Legislative Assembly on October 27, 2021.  It seeks to replace the Travancore-Cochin Public Health Act, 1955 and the Madras Public Health Act, 1939 and provide a three-tier public health governance system in the state.  The Bill has been referred to a Select Committee.

PART A: HIGHLIGHTS OF THE BILL

Context

Public health includes preventing disease, prolonging life and promoting health through organised efforts.[1]  Water, sanitation, environmental factors, and lack of quality housing are public health concerns due to their ability to influence health outcomes.[2]  Under the Constitution, states have the power to regulate health.[3]  Pursuant to this power, several states such as Kerala, Tamil Nadu, Andhra Pradesh, Madhya Pradesh, Goa, and Assam have passed public health laws.[4]^{,[5],[6],[7],[8]}   These laws regulate the spread of communicable diseases, water supply, sanitation, and conduct of festivals.  (See Table 2 in the Annexure for a comparison of public health laws across states.)

With the onset of Covid-19, many states notified regulations under the Epidemic Diseases Act, 1897 to control the spread of the virus.[9]^,[10],[11]  The Parliamentary Standing Committee on Home Affairs (2020) had noted that the 1897 Act is outdated and recommended updating it to effectively deal with future emergencies like epidemics.[12]  In 2014, the Law Commission included the 1897 Act in the category of laws whose repeal had been recommended by various commissions.[13]  The central government has made attempts in the past to revisit the law.[14]^,[15] 

In Kerala, the Tamil Nadu Public Health Act, 1939 was in force in the Malabar region, and the Travancore-Cochin Public Health Act, 1955, was applicable in the rest of the state.^4,5  The Kerala Public Health Ordinance, 2021 was promulgated in February 2021 to unify the legal framework for public health governance in the state.  It also sought to: (i) provide health functionaries in the state with necessary powers for the administration of public health and (ii) ensure the preparation of action plans for dealing with communicable and non-communicable diseases.  A Bill to replace the Ordinance could not be introduced in the subsequent session of the Legislative Assembly, and it was promulgated again in July 2021 and August 2021.   The 2021 Bill seeks to replace the 1955 Act.   

Key Features

• Three-tier public health governance system:  The Bill creates a three-tier public health system and designates existing officials as public health authorities: (i) the Director of Health Services will be the State Public Health Authority (State Authority), (ii) the district medical officer (health) will be the District Public Health Authority (District Authority), and (iii) the medical officer of the concerned local self-government institution (local government) will be the Local Public Health Authority (Local Authority).  
   
• State level:  The State Authority will play a supervisory and policy setting role.  Its functions include: (i) preparing a public health annual action plan for the state, (ii) issuing directions as delegated by the government, (iii) fixing standards for areas such as medical treatment, disease surveillance, and prevention and control of communicable diseases, (iv) preparing guidelines for preventive activities such as vector control, and (v) collecting data on public health matters.   The state government may also delegate powers to issue directions to the State Authority.  
   
• District level:  Functions of the District Authority include: (i) conducting public health investigations, (ii) preparing a public health annual action plan for the district, and (iii) issuing guidelines to the Local Authority.
   
• Local level:  Functions of the Local Authority include: (i) preparing a public health annual action plan for the local area, (ii) directing any person or authority to desist from or undertake any activity for the promotion of public health, and (iii) levying fines, compounding any offence, or entering and inspecting places for control of contamination, preventing spread of infection, and vector control. 
   
• Inter-sectoral coordination:  The State Authority and the District Authority may issue directions to any state department on matters relating to public health.  In case of public health emergencies, the State Authority may constitute an ad hoc advisory committee with nominees of relevant departments and other experts. 
   
• Coverage:  The Bill lists both communicable and non-communicable diseases that will be covered.  It also lists notifiable communicable diseases, which have different reporting requirements than communicable diseases.  The state government may notify such additional diseases.  It may also notify diseases covered under the Bill on which data needs to be collected.  The Bill also provides for regulating water supply, sanitary conveniences, and vector control.  It empowers the Local Authority to carry out measures related to reproductive, maternal, neonatal, child, and adolescent health. 

• Communicable diseases:  Communicable diseases listed in the Bill include malaria, dengue, and HIV.  Notifiable communicable diseases include malaria, nipah and covid-19.  Medical practitioners must report incidents or outbreak of these diseases to the Local Authority.  The Local Authority will forward the details to the District and State Surveillance Officers.   The Local Authority will make arrangements for hospitals and wards, conveyance and free diagnosis and treatment of infected persons.  The government may confer special powers on officers for preventing the spread of communicable diseases.  The Local Authority and District Authority have powers of inspection, search, seizure, and imposition of penalties in case of non-compliance with their directions. 

• Non-Communicable Diseases:  Non-communicable diseases (NCDs) listed in the Bill include cancer, coronary artery disease, Alzheimer disease, obesity, and diabetes.  The state government will issue guidelines for the preventive, promotive, curative, rehabilitative, and palliative activities for the control of NCDs.  The Local Authority will: (i) implement these guidelines, (ii) encourage control of NCDs through measures like control of air pollution, promotion of physical activity, early diagnosis and treatment and high-risk screening, and (iii) encourage greater availability of healthy food items for people with or suspected to have NCDs.  The local governments will set aside a portion of their heath budget for the planning and implementation of these programmes. 

• Public health emergencies:  A public health emergency has been defined as the occurrence of an illness or health condition which has a high probability of causing death or serious disabilities in the affected population.  Such emergencies may be caused due to communicable or non-communicable diseases.  The State Authority will specify conditions for declaring a public health emergency.  It will also have the power to constitute ad hoc advisory committees to assist and give expert opinions in case of public emergencies.  The State Authority and District Authority will advise the state government or the district magistrate to declare a public health emergency in the state or district.  

 

PART B: KEY ISSUES AND ANALYSIS

Lack of adequate safeguards for data collection and processing

Under the Bill, there are several provisions for health authorities and medical practitioners to collect health data of individuals.  For example, the State Authority has the power to collect data on public health matters from healthcare establishments.  All healthcare establishments are required to report data regarding any communicable or notifiable communicable diseases to the District and Local Authorities.  Further, every medical practitioner and healthcare establishment will be required to provide data to the Local Authority or the District Authority on any disease of public health importance.  Medical practitioners are also required to furnish reports on communicable and notifiable communicable diseases to the Local Authority who forwards this data to Surveillance Officers.  Contravening such provisions will lead to a penalty.  The Bill does not specify safeguards for such data collection and processing. 

There may be a need to collect health data of individuals to manage public health at the local level.  For example, it may be necessary to identify individuals infected with certain communicable diseases and isolate them to prevent further spread of the disease.  There may also be a need to assess trends related to the spread and intensity of a disease at local, district and state levels.  However, the Bill provides no safeguards to be followed while collecting and processing such data.  In particular, it does not require data to be anonymised before sending it to the district and state levels.  

This is in contrast to a similar Act in Assam.  The Assam Public Health Act, 2010 provides that every patient has the right that all information about his health status, medical condition, diagnosis, health care and all other personal information (which is identified or identifiable to him), must be kept confidential, even after his death.[16]  Such confidential information can only be disclosed if the patient gives explicit consent or if provided by any other law.  The information may be used for study, teaching or research only if authorised by the patient, the head of the health care establishment concerned and the Institutional Ethics Committee of the establishment.

Other laws which require collection of personal data of individuals for public purposes provide for some safeguards.  For instance, the Collection of Statistics Act, 2008 provides that all statistical information published should be arranged such that any particulars do not become identifiable (unless consented to by the informant).[17]  When disclosing information to other institutions, the name and address of the informant to whom the information is related to must be deleted.[18]  The statistics officer must comply with security provisions of the Act when recording or copying any of the information collected.[19]  The Collection of Statistics Rules, 2011 specify that the appropriate government or statistics office must satisfy itself that the information collected is limited to what is absolutely necessary.[20]  They also provide that all agencies collecting statistics should take reasonable measures to ensure that personal information is: (i) protected against unauthorised access, disclosure or misuse, and (ii) used for data processing only with adequate security checks.[21]  Under the Census Act, 1948 census-officers are penalised if they disclose any information which they have received through a census return, without prior sanction of the government.[22]  Under the Census Rules, 1990 the Census Commissioner decides what data should be public.[23]  After processing, the canvassed schedules are preserved at the office of the Director of Census Operations or any place directed by the Director.[24]  Further, the schedules and connected papers are destroyed in accordance with the directions issued by the Census Commissioner.[25] 

All medical practitioners may not be able to examine communicable diseases

The Bill provides that a person may approach any registered medical practitioner of modern medicine for a certificate specifying they are free from a communicable disease.  The practitioner will have to examine them and issue such a certificate if they are not suffering from such disease or have been cured.  Refusal to do so is punishable with a fine.  However, all medical practitioners may not have the expertise or specialisation to examine people for all communicable diseases specified.  For instance, a gynaecologist may not have the expertise to examine people for tuberculosis or dengue and issue such a certificate.

Lack of clarity with respect to cases of malicious abuse of power

The Bill proposes that malicious abuse of power by the Local Authority, secretary of the local government or employee of the government will be punished with a fine of up to Rs 10,000.  The Bill does not define ‘malicious abuse of power’ or specify the method of investigation to be followed in such cases.  Note that the Kerala Panchayat Raj Act, 1994 provides for the appointment of an ombudsman at the state level.[26]  The ombudsman investigates charges of corruption, maladministration or irregularities in the discharge of administrative functions against the local government and their officers.  Cases of malicious abuse of power under this Bill may overlap with cases that can be tried by the ombudsman. 

Financial implications have not been specified

The Bill proposes establishing surveillance mechanisms, provision of free medical treatment in times of epidemic, and measures for tackling non-communicable diseases.  This may require additional expenditure by the state.  However, the Financial Memorandum of the Bill states that no additional funds will be required from the Consolidated Fund of the state for implementing the provisions of the Bill.  The implementation of the Bill may be affected if adequate funds are not available.

Table 1: Key changes between the old and proposed regime for public health governance in Kerala

Provision	Proposed Regime
	The Travancore-Cochin Public Health Act, 1955 and the Madras Public Health Act, 1939	The Kerala Public Health Bill, 2021
Governance structure	Two-tier structure with the Director of Public Health at the state level, and Health Officers appointed by urban local bodies. The 1939 Act also set up a Public Health Board to advise the state government on matters referred to it.	Three-tier (State, District, and Local Public Health Authorities)  (Director of Health Services → District Medical Officer (Health) → Health Officer of concerned local body)
Public health emergency	Provision for appointing temporary Health Officers and assigning public health staff from one urban local authority for temporary duty in another urban local authority.	Such emergency may be declared by state government/ District Magistrate on advice of the State/ District Public Health Authority. State Authority may constitute Ad hoc Public Health Advisory Committees to give expert opinion and co-ordinate with other departments. Provision for appointing temporary Health Officers and assigning staff of a public healthcare establishment for temporary duty in the area of another such establishment.
Communicable diseases	Classifies diseases into: (i) infectious diseases, (ii) notified infectious diseases, and (iii) venereal diseases (sexually transmitted diseases).  Leprosy is classified as a separate category.  In the 1939 Act leprosy is classified as both an infectious and notified infectious disease.	Provides for communicable diseases (including leprosy) and notifiable communicable diseases. No provision for venereal diseases.  HIV/AIDS, which may be transmitted sexually, is included as a communicable disease.
	Infectious diseases include malaria, polio, measles, chickenpox, cholera, dysentery, rabies, tuberculosis (TB), and typhoid.	Adds chikungunya, dengue fever, Ebola, tetanus, epidemic influenza, infective hepatitis, etc. to the list of communicable diseases.
	Notified infectious diseases include certain infectious diseases (such as malaria, chickenpox, cholera, rabies, and TB).  That is, all notified infectious diseases are also infectious diseases.	Notifiable communicable diseases include certain communicable diseases (such as TB, polio, and tetanus), and certain other diseases (such as yellow fever, nipah, and covid-19).
Non-communicable diseases	No provision	Includes cancer, chronic lung disease, dementia, hypertension, diabetes, obesity, and stroke. Local Public Health Authorities to implement policies and guidelines formulated by the state government for preventing and controlling non-communicable diseases.
Communicable/ infectious diseases	The concerned local body may provide: (i) additional health staff, medicines, equipment, etc., and (ii) hospitals and wards for receiving and treating patients, and ambulances to carry them. Duty of medical practitioner to inform the concerned authority of any cases of infection.	Communicable diseases and notifiable communicable diseases are to be treated similarly, under the Bill. Local Public Health Authority to provide (as required): (i) free diagnosis and treatment of persons, (ii) hospitals and wards, and (iii) suitable conveyances for carriage of patients. Duty of medical practitioner, officer-in-charge of healthcare establishment, manager of a factory or public building, head of a family, owner/ occupier of a house to inform the Local Authority of cases of infection. In case of prevalence of a communicable or notifiable disease in a local area, the District Collector may prohibit assembly of more than a specified number of persons. Registered medical practitioners of modern medicine must, at the instance of the concerned persons and after satisfying themselves, certify such persons as free from infection.   State government and State Authority may issue guidelines for: (i) diagnosis and treatment of patients, (ii) bio-medical waste management, and (iii) management of blood banks.
Notifiable communicable diseases	Duty of medical practitioner, manager of a factory or public building, head of a family, owner/ occupier of a house to inform the concerned authority of cases of infection in their premises. In case of prevalence of a notified disease in a local area, a Magistrate may prohibit assembly of more than 50 persons.

Sources: The Travancore-Cochin Public Health Act, 1955; The Madras Public Health Act, 1939; The Kerala Public Health Bill, 2021; PRS.

Table 2: State-wise comparison of public health laws
Provision	Kerala (2021 Bill)	Tamil Nadu5	Andhra Pradesh7	Madhya Pradesh6	Uttar Pradesh (2020)[27]	Goa8	Assam (2010)[28]
Authorities	Appoints existing health officials as public health authorities at state, district and local levels.   State Authority has a supervisory and policy setting role.  State and District Authority may issue directions to any department on matters relating to public health.	State Public Health Board advises the government.  Director of Public Health may advise local authorities to improve public health administration in their areas. Government will appoint Health Officers at local level.	State Public Health Board advises the government.  Director of Public Health may advise local authorities to improve public health administration in their areas. Government will appoint Health Officers at local level.	State Public Health Board advises the government.  Director of Health Services may advise local authorities to improve public health administration in their areas. Local Authority will appoint Health Officers.	Government may declare an epidemic and make regulations to control its spread.  State Epidemic Control Authority will advise the government and order measures.  District Authority will implement these orders.	Public Health Board advises the government on matters referred to it.  Director of Health Services may advise local authorities to improve public health administration. Government will appoint Health Officers.	Health and Family Welfare Department has to provide healthcare access to all. State Public Health Board will prepare and implement strategies and identify health goals. District Board will implement strategies.
Public health coverage	Covers communicable and non-communicable diseases listed in the Bill.  Additional diseases may be notified.  Provides for regulation of water supply, sanitary conveniences, vector control, and maternal and child health.	Lists infectious diseases.  Additional diseases may be notified.  Also covers venereal diseases.  Provides for regulation of water supply, sanitary conveniences, mosquito breeding areas, and maternity and child welfare.	Lists infectious diseases.  Additional diseases may be notified.  Also covers venereal diseases.  Provides for regulation of water supply, sanitary conveniences, mosquito breeding areas, and maternity and child welfare.	Lists infectious diseases.  Additional diseases may be notified.  Also covers venereal diseases. Provides for regulation of water supply, sanitary conveniences, mosquito breeding areas, and maternity and child welfare.	Covers epidemic disease which are contagious or infectious diseases afflicting the entire or part of the state.   Prescribes penalties for violating quarantine orders, and inciting others to violate provisions of the Act	Lists infectious diseases.  Additional diseases may be notified.  Also covers venereal diseases. Provides for regulation of water supply, sanitary conveniences, mosquito breeding areas, and maternity and child welfare.	Every person has the right to appropriate healthcare, reproductive health services, safe drinking water, sanitation and environmental hygiene, among others.
Water supply	Local Authority will monitor and give directions to ensure supply of safe drinking water.	Local Authority will monitor and provide drinking water.  Local Authority may levy water tax, as sanctioned by government.	Local Authority will monitor and provide drinking water.  Local Authority may levy water tax, as sanctioned by government.	Local Authority will monitor and provide drinking water.  Local Authority may levy water tax, as sanctioned by government.	No specific provision	Local Authority will monitor and provide drinking water.  Local Authority may levy water tax, as sanctioned by government.	Health Department will coordinate with other departments to provide safe drinking water.
Sanitation	Local government will provide and maintain public sanitary conveniences.	Local authority will provide and maintain public sanitary conveniences.	Local authority will provide and maintain public sanitary conveniences.	Local authority will provide and maintain public sanitary conveniences.	No specific provision	Local authority will provide and maintain public sanitary conveniences.	Health Department will coordinate and provide sanitation.
Vector Control	Local government will take measures for prevention and control of insects.	Act prohibits mosquito breeding in standing water.  Health Officer will take steps to control mosquito breeding.	Act prohibits mosquito breeding in standing water.  Health Officer will take steps to control mosquito breeding.	Act prohibits mosquito breeding in standing water.  Health Officer will take steps to control mosquito breeding.	No specific provision	Act prohibits mosquito breeding in standing water.  Health Officer will take steps to control mosquito breeding.	Health Department will coordinate and provide sanitation through control of insects.
Public Health Emergency	State Authority will specify conditions for a public health emergency.  It may constitute ad hoc advisory committees during emergencies.	Government may appoint temporary Health Officers to prevent spread of diseases during emergencies.	Government may appoint temporary Health Officers to prevent spread of diseases during emergencies.	Government may appoint temporary Health Officers to prevent spread of diseases during emergencies.	No specific provision related to emergency.  Act provides for the government to declare outbreak of an epidemic.	Government may appoint temporary Health Officers to prevent spread of diseases during emergencies.	Defined as threat of illness which needs immediate public health intervention to prevent death or disability.

Sources: Refer to endnotes 4, 5, 6, 7, 26, 27; PRS.